Real Estate & Construction

A version of this article first appeared in the Construction Law Newsletter, Volume 34, Number 3 (January 2018), coauthors Paul M. Lurie and Jeremy S. Baker Want to Resolve Design and Construction Disputes Quickly? Clients have spoken, and their in-house counsel, lawyers, and mediators now understand that clients want their disputes resolved quickly — faster than they typically are in traditional mediation and arbitration. Most construction and commercial disputes settle and are not adjudicated. Early settlements reduce expenses and save time that clients would rather devote to their businesses. Early settlements also reduce the uncertainty inherent in litigation and arbitration…
Private arbitration has several advantages over litigation in a court of law. One is that arbitration takes place mostly in private. Unlike litigation, which is conducted in public and leaves behind publicly-available records, arbitration typically does not leave behind a public record of filings which could embarrass the parties involved in the dispute. Arbitrators Know Design and Construction Arbitration enables parties to use expert decision-makers familiar with construction industry norms to resolve their disputes. Construction arbitrators are typically knowledgeable about construction law and practice and are more likely to produce high-quality decisions than most judges. Most judges are “generalists” who…
The choice between arbitration and court litigation complicated. Arbitration is no panacea. Some disputes are definitely better suited to litigation in a court of competent jurisdiction than arbitration. However, Illinois courts and law are no longer hostile to arbitration, and recognize its many advantages. Illinois law and Illinois Courts Favor Arbitration. Our Supreme Court has characterized arbitration as “an effective, expeditious, and cost-efficient method of dispute resolution.” Salsitz v. Kreiss, 198 Ill.2d 1, 761 N.E.2d 724, 731, 260 Ill.Dec. 541 (2001). Illinois public policy favors arbitration because it “promotes the economical and efficient resolution of disputes.” Phoenix Insurance…
Many people and families throughout the United States are struggling with debt, especially during the COVID-19 pandemic, which has resulted in the loss of jobs, reductions in the income that people are able to earn, and other financial difficulties. Homeowners who are struggling to pay ongoing expenses may be concerned about what will happen if they default on their mortgage, including whether they may face foreclosure. While some homeowners may be able to avoid foreclosure through a loan modification, others may find that they will be unable to avoid losing their home. In these cases, a short sale
1031 Exchange Rules & Benefits A 1031 exchange is one of the most powerful tools available to real estate investors. The 1031 exchange allows a real estate investor to avoid paying taxes on the sale of his or her property by rolling the proceeds into a new one. However, 1031 exchange rules can be tedious, and missing a step can cost you a lot in lost tax benefits. Let’s go over the basics of 1031 exchanges and the rules to watch out for: What Is a 1031 Exchange? A 1031 exchange is a creature of the tax code. Section 1031
Debt is a major problem for many American families, especially during difficult times such as the COVID-19 pandemic. If you have lost your job, are facing large medical bills, or are struggling to make payments on the debts you owe, you may be concerned about the possibility of foreclosure on your home. Fortunately, bankruptcy may provide your family with some relief by allowing you to discharge or repay certain debts without losing your home. Automatic Foreclosure Stay During Bankruptcy Proceedings When you file for bankruptcy, an automatic stay will go into effect preventing creditors from attempting to collect on the…
Homeownership is an important goal for many American families. Buying a home is an exciting prospect, but the process of doing so can be very complicated. Once you get pre-approval for a mortgage, sign a purchase contract, and put down earnest money, this process begins, and you will spend the next several weeks working to complete the necessary steps to close on the home. As you prepare to move in, you will want to understand exactly what will happen at your home closing. With the right real estate attorney on your side, you can make sure the closing process…
There are good reasons for real estate developers and project owners to prefer a “Fixed Fee” approach over a “Cost-Plus-Fee-up-to-Guaranteed-Maximum-Price (GMP)” approach to paying for construction work. But Cost-Plus GMP Contract Agreements have many virtues as well. Which is best? There is no one correct answer. Much depends on the project-specific goals. What does the developer or project owner most highly value? Speed of project delivery and firm pricing are, for example, often in conflict. There are big differences between the Fixed Fee and Cost-Plus GMP approaches. Usually, when I get involved in a project, I will have a strong…
The economic impact of the COVID-19 pandemic has been significant. Many people throughout the United States have either taken a pay cut, been temporarily furloughed, or lost their jobs completely. As a result, renters and homeowners are struggling to make their monthly housing payments. While repossession and foreclosure are both processes used by creditors to reclaim property that is used as collateral for a loan, the procedures followed in each type of case are different. Defaulting on a Loan Repossession is common in vehicle loans. Once a person becomes delinquent on payments and the borrower is in default on the…
The impact of COVID-19 has been widespread, with public health concerns as well as an economic downfall. In response to stay-at-home and quarantine orders issued by local governments, non-essential businesses were forced to close. As a result, many people throughout the United States have lost their jobs. This has resulted in a record-setting number of unemployment claims, but it also left millions of people facing housing insecurity because of lost income. For families, even one parent losing his or her job can be devastating if they rely on that income to pay their rent or mortgage. When too many payments…
Admission to the Society of Illinois Construction Attorneys (SOICA) is by invitation only. Its ranks include distinguished former judges, highly regarded mediators and arbitrators, and attorneys who are widely considered to be at the top of the Illinois construction law bar.  “Joining SOICA has been an important goal of mine for 15 years,” says Jeremy. He is “excited to continue to work with the SOICA members – the highest caliber construction attorneys in Illinois – who have been my friends and mentors for many years.” SOICA encourages “the association of outstanding Illinois lawyers who are distinguished for their skill, experience…
Buying a home can be a dream come true for many people. Even if you worked hard and saved a substantial amount for a down payment, you will likely still need to take out a loan, which is known as a mortgage. If you fail to make your monthly mortgage payments, you could be at risk of losing your house. Foreclosure is the legal process by which the lender or bank can repossess your house. This means you will have to vacate the premises within a certain amount of time. If your house is worth less than the amount you…
Mortgage Foreclosure Relief In the COVID-19 Era The CARES Act began a new era of mortgage foreclosure relief options for homeowners. Not only can homeowners take advantage of mortgage forbearance in many cases, they can avoid the fear of foreclosure during the nationwide foreclosure eviction moratorium. However, there are some important guidelines to keep in mind when using any of the new types of mortgage foreclosure relief. Let’s go over some of the key foreclosure relief options below. Foreclosure Eviction Moratorium One of the most important provisions of the CARES Act halted all foreclosure proceedings for federally-backed mortgages. This eviction…
Managing a property or community association is complicated. There are so many rules and regulations that you need to be aware of and it’s hard to keep track of them all. Fair housing laws are diverse like the populations they aim to protect. We often assist property managers, realtors, landlords and community associations (condo, HOA and townhomes) on this topic and here’s what we think you should know: 1. The Fair Housing Act This landmark legislation was signed into federal law in 1968 and makes discrimination illegal in the sale, lease or rental of housing or making housing otherwise unavailable…
Buying your first home can be exciting, but it can also be overwhelming to take on such a major responsibility. Regardless if you are single or married, it is important to carefully consider your mortgage and what you can afford in terms of a loan. During the COVID-19 pandemic, many people have been furloughed or laid off from their jobs for an indefinite period of time. Although they may be entitled to unemployment, those funds may not cover their monthly mortgage payment. The federal government has issued protections for tenants and mortgage loan borrowers under the Coronavirus Aid, Relief, and…
The very act of two project participants coming together to thoughtfully negotiate a design and construction contract has a benefit unto itself – one that is separate from the piece of paper produced at the end of the contract negotiation. Speed and Efficiency When I negotiate contracts, my goal is to complete the negotiation quickly and efficiently.  My clients want to design and construct new buildings, not get bogged down in contract negotiations.  I love to send the “happy” email to my client that says, “here is the signature copy of the contract – we are done.” The Hidden Benefit…